A Supreme Court Justice Who Does Not Understand The Court

 

Justice Stephen Breyer is worried about the Supreme Court — or at least I think he is, based on what I could glean from the faint notes of concern he tucks into his new book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.”

Breyer, who retired from the court in 2022, is known as a moderate liberal and a stalwart institutionalist. In his previous book, “The Authority of the Court and the Peril of Politics” (2021), he insisted that critics had failed to recognize the justices’ unflagging commitment to upholding apolitical ideals. Nine months after it was published, the Supreme Court’s conservative bloc, by a vote of 6-3, upended longstanding precedent on abortion rights. The majority opinion declared Roe v. Wade “overruled”; Breyer signed on to the minority’s blistering dissent.

Given that Breyer is no longer a sitting judge, one might have thought that this new book would allow him to let loose, and in interviews, he has suggested he is sounding an alarm. But his voice in the book barely rises above a whisper. Written in Breyer’s careful, tentative style, “Reading the Constitution” is well-meaning, tedious, and exasperating; it is also rather telling, showing how a thoughtful, conscientious jurist can get so wedded to propriety and high-mindedness that he comes across as earnestly naïve. 

 

The cover of “Reading the Constitution,” by Stephen Breyer, consists of simple black text on a white background. The cover has red borders on the top and bottom, blue borders on the left and right, and thin red lines run horizontally above and below the subtitle.

Breyer explains that he wrote the book to counter the rise of “textualism,” a form of judicial interpretation that fixates on the text of the Constitution and often shades into “originalism” — which restricts interpretation even further to how the text would have been understood at the time it was originally written. Instead of textualism, he prefers a “traditionalist” or “pragmatic” approach that takes not just text but also “purpose” into account. He argues that judges who try to strip away any extra-textual considerations, like evolving values and legislative history, “diminish the effectiveness and vibrancy of their interpretive palette.” 

Most of the book is given over to parsing cases in granular detail, explaining exactly how looking beyond the text has historically yielded opinions that are “sound” — a word he calls one of the best compliments that you can give a judge. He front-loads his examples with those he describes as “intellectually difficult.” 

Only after wading through “highly technical” cases having to do with things like patent infringement and retirement plans for railroad workers will a reader be prepared, he says, to take on anything as “value-laden” as reproductive rights.

U.S. Supreme Court News and Analysis

A ‘Nearly Adopted Daughter’: Justice Clarence Thomas hired his wife’s former employee and a virtual family member as a Supreme Court clerk, one of the most coveted positions in the legal world. Here’s how it happened.

Immigration Law: A federal appeals court ruled that an aggressive Texas law should be paused as an appeal moves forward after the justices temporarily allowed it to go into effect.

Abortion Pill Access: A majority of the Supreme Court appeared deeply skeptical of efforts by a group of anti-abortion doctors and organizations to severely curtail access to mifepristone, a widely used abortion pill.

Trump’s Immunity: Former President Donald Trump urged the Supreme Court to rule that he is absolutely immune from criminal charges stemming from his attempts to subvert the 2020 election.

This may have seemed to Breyer like a sound structure for his book, but it turns out to be a rhetorical sinkhole. Subjecting your readers to a forced march through complex arcana, telling them the “repetition” is for their own good, is more likely to exhaust them than prepare them. Despite my (admittedly freakish) tolerance for exegesis, I felt so worn down by the bland recitation of case history that I found myself nearly sapped of the will to go on.

Of course, it is Breyer’s patience in sifting through the most finicky details that made him such a scrupulous jurist. He is dedicated, precise, and deliberate. He shows just how far he is willing to drill down into every element of a case to arrive at a decision. Life, he points out, is too full of ambiguity and change for “static” readings of statutes to make any sense; a jurisprudence that takes heed of “the Constitution’s democratic, humane values” is “both normatively desirable and practically useful.”

But in a book intended not only for legal professionals, combing through case details will only tell you so much. Breyer says he dislikes textualism because it is too limiting and too rigid; originalism, he explains, “does not take into account how our values as a society evolve over time as we learn from the mistakes of our past.” He writes as if offering a blizzard of detail to that effect will eventually clinch his argument. It also allows him to pretend that the crucial difference between the justices’ judicial approaches is primarily technical, a matter of “interpretive tools.”

“To place determinative weight on how 18th-century speakers used particular words,” Breyer says, “is regressive.” He’s right — and perhaps that’s why the conservative justices like originalism so much. For anyone who believes that progress has gotten out of hand, “regressive” is arguably a point in originalism’s favor. “My examples show why a judge should often emphasize purposes,” he writes as if he’s identifying something that has been overlooked or rejected. Isn’t it possible that his conservative colleagues also emphasize purposes, albeit very different ones?

Originalists deny that purposes matter to them, since purpose, as the originalist justice Antonin Scalia once put it, fails to provide an “objective basis for judging”; they like to say that they’re simply sticking closely to the text, and Breyer is palpably eager to take their stated intentions at face value, even when textualism can also function quite nicely as ideological cover. He keeps repeating the argument that “purpose-related tools” can make “our democracy more workable.” The word “workable” is used so many times in the book that it becomes a poignant refrain — that of an optimistic, pragmatic liberal jurist who wants to believe that if only he is clear enough, he can get his fellow justices to recognize that they are ultimately committed to the same thing.

Does Breyer, who is so attuned to the irreducible complexity of the world outside the Supreme Court, truly believe that the world inside is so simple? Given his decades of experience, I find it hard to imagine he does — but then he still seems flummoxed by the Supreme Court’s right-wing turn. At his most baffled, he starts firing off strings of rhetorical questions, asking plaintively how anyone could ever want “a world in which no governmental effort is made to cure environmental, medical or safety-related ills?”

In an interview with Adam Liptak of The Times last week, a beseeching Breyer sounded similarly perplexed. After all, he said, the decision to override Roe was bound to have cruel consequences: “Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn’t do that.”

There is a profound and generous kindness embedded in his remarks, a determination to think the best of people, but his incredulity makes you wonder what alternate universe Breyer is living in. When it comes to denying a woman the right to a life-saving abortion, not only are there “really” some people who “would do that”; there are six people in black robes who effectively did.

READING THE CONSTITUTION: Why I Chose Pragmatism, Not Textualism | By Stephen Breyer | Simon & Schuster | 335 pp. | $32

Jennifer Szalai is the nonfiction book critic for The Times. More about Jennifer Szalai

The New York Times